Absence of provisions for common status presented a major difficulty for British ministers, as it was believed that this would lead to a breach in the unity of the Commonwealth. The Nationality Bill made no reference to such status and de Valera was uncompromising in his position: ‘the British view of common status was not one in which representatives of this state at any time concurred’.102 In fact, the bill was very much along the lines of the proposals put forward by Irish delegates at the 1930 Imperial Conference. The Aliens Bill further antagonised British opinion by including British subjects in the definition of aliens as anyone who was not a citizen of the Free State.103 However, the Irish government had power to exempt certain classes of people from this definition and when the bill became law it made an order exempting citizens from the other Commonwealth countries from the status of aliens. Notwithstanding this fact, the language used in the acts of Ireland’s ‘nationality code’ pointed not towards membership of the Commonwealth but towards de Valera’s concept of external association as he had sketched it years before in ‘Document No. 2’.104
Abolition of the Seanad: the ‘Hearne affair’
On 22 March 1934, de Valera introduced the Constitution (Amendment No. 24) Bill, to amend Article 12 and abolish Seanad Éireann as a constituent House of the Oireachtas.105 The bill was enacted on 29 May 1936, the Seanad sitting for the last time on 19 May, when it adjourned sine die.106 Fianna Fáil’s attitude to the Free State Seanad will be considered in the next chapter; here we are concerned with an incident involving John Hearne in the course of the abolition debate in that house on 15 January 1936.
During the discussion, there was criticism of the fact that de Valera was not present in the chamber. Senator William Quirke, the Fianna Fáil group leader, offered an explanation. According to him, an official from the President’s Department, unnamed by Quirke, was sent to take notes on the debate. He was approached by an official on the Seanad staff and informed that he could not sit where he was, unless accompanied by a minister, but that a seat would be provided in the public gallery. De Valera’s official left. Quirke described this as ‘an unprecedented incident’ and he alleged that it was ‘premeditated’ and ‘indicative of the vindictive policy of the majority of this house against the President personally’.107
The Cathaoirleach, Senator T.W. Westropp Bennett, intervened at this juncture to clarify the situation. It transpired that Hearne was the official in question, and that
[he] came in at three o’clock and sat in one of the seats reserved for those in attendance on ministers. He was asked who was coming, or if the President were coming, and he said he did not know: that he was not aware that he was coming. Mr Coffey [an official of the Seanad] was then asked to tell him that he could not remain there if a minister were not in attendance – those seats were reserved for ministers and their attendants – but that a seat would be provided for him in the front row of the [public] gallery. He replied ‘Tell him [the Cathaoirleach] to communicate that to me in the proper way’, and he subsequently left. That was communicated to me by the Clerk of the House. I then prepared this letter, which I signed, and which would have been handed to him if he came back. It was not handed to him, as he did not come to the House later. The letter reads as follows: –
‘Legal adviser to the Minister for External Affairs.
I am afraid I cannot allow you to sit behind the chairs reserved for ministers if no minister is in attendance. A seat in the gallery will be found for you. This procedure is in accordance with precedent’.
–Cathaoirleach108
The next day the event was reported in the three national newspapers. Under a heading, ‘An unusual incident’, the Irish Times carried a description based on the statements of Senators Quirke and Westropp Bennett.109 The Irish Press used the heading ‘A remarkable incident’.110 The Irish Independent described the affair and continued: ‘It is understood that the President regarded the action which caused his adviser to withdraw as a grave discourtesy to himself and that he would probably not attend the debate today.’111
Senator Westropp Bennett wrote to de Valera on 16 January to explain the matter from his point of view. In the detailed letter, he emphasised the protocol governing the attendance of ministerial officials in the Seanad chamber and assured the President that he never intended to offer any discourtesy to him or his officials.112 De Valera’s curt, two-sentence reply simply noted the explanation which had been offered.113
This incident, an essentially minor one, underscored the tensions between de Valera and the Seanad. ‘The Hearne affair’, if it may be so styled, was the product of turbulent political times, an overly sensitive upper house and a head of government determined in his antipathy towards it. It was unfortunate that Hearne was caught in the crossfire, and this may be explained by the fact that, according to the Irish Independent, ‘he usually accompanied the President in the Senate when the abolition bill and certain other bills were discussed’.114 He happened to be there when a defensive Seanad decided to stand on its dignity by invoking precedent. Throughout his career, Hearne was quintessentially the self-effacing and unobtrusive civil servant and it is reasonable to assume that he would have found the publicity unwelcome – though he was no shrinking violet, as was evidenced in his attitude and reply to Mr Coffey. While de Valera exploited the incident for political advantage, it is likely that he did take umbrage at the treatment of his legal adviser. What he regarded as the insulting treatment of Hearne was, in fact, directed at him; Hearne was simply a vicarious target. It is also possible that the President was unhappy that a civil servant was drawn into a political spat. This unhappiness may have been exacerbated by the fact that the official in question was Hearne, for whom he had a high regard.
The close professional relationship that developed between John Hearne and Éamon de Valera in the years 1932–6 was founded on the latter’s appreciation of Hearne’s judgement, competence and expertise. The President came to realise that the Waterford-born lawyer and civil servant possessed attributes which facilitated the realisation of his policy objectives. Hearne responded by serving his minister with consummate professionalism. This relationship was to be the foundation of the trust reposed in Hearne by de Valera when it came to the advancement of his radical programme of constitutional change.
CHAPTER 4
Towards a New Constitution,
1932–1936
In June 1936, Éamon de Valera informed King Edward VIII of the Irish Free State’s decision to draft a new constitution. It was a decision which was to herald a momentous change in the constitutional relationship between the two countries and represented the culmination of the process of dismantling the Treaty settlement of 1921. This decision was not taken hastily; rather it was in gestation for a period of over four years, from 1932 to 1936. There were significant milestones along the way. In fact, it is possible to identify four stages in the evolution of Bunreacht na hÉireann. First, there was the removal from the Free State Constitution of those articles which were particularly offensive to republicans. These were articles implanting the Crown in the constitutional framework of the state and were removed by amendments in 1932 and 1933, as was outlined in the previous chapter. The second stage was the establishment, in 1934, by de Valera, of a civil service committee to review the 1922 Constitution. The next stage, in 1935, was the formulation of draft heads of a new fundamental law. Finally, a year later, de Valera decided to draft an entirely new constitution and this represented the final stage in the progress towards Bunreacht na hÉireann.
John Hearne was to be involved in all these stages. His role in amending the 1922 Constitution has already been noted in Chapter 3. He served on the civil service committee which reviewed this document. It was to his legal adviser that de Valera turned to draw up draft heads in 1935 and, most significantly, Hearne was selected